DECISION 1997: CONSTITUTIONAL CHANGE IN NEW YORK by Gerald Benjamin and Henrik N. Dullea (Editors). Albany: The Rockefeller Institute Press, 1997. 534 pp. Paper $29.95. ISBN 0-914341-50-2
Reviewed by Daniel C. Kramer, Politics-Economics-Philosophy Department,
College of Staten Island, City University of New York.
Article XIX (2) of the New York State Constitution requires that every twenty years New Yorkers be given the chance to vote on the question "Shall there be a convention to revise the Constitution and amend the same"? Residents of the State will cast such a ballot on November 4, 1997. In the case of an affirmative answer, delegates will be elected in 1998 and the convention will be held in 1999, to be followed by a referendum on its efforts. If the electorate is pleased with these, the 1894 Constitution currently in force will no longer be operative. This document has, by the way, been modified under Article XIX (1) over 200 times by amendments passed by a majority of each legislative chamber in two successive separately elected legislatures and then approved by the citizenry. Because of these numerous amendments, the 1894 charter is much longer than the U.S. Constitution and is, in fact, one of the lengthiest constitutions in the nation.
In May 1993 then-Governor Mario Cuomo appointed a Temporary Commission on Constitutional Revision to get the people of the State to think about whether their vote in 1997 should be for or against a convention. The Commission was chaired by Peter Goldmark, Budget Director under Governor Hugh Carey and then Executive Director of the Port Authority of New York and New Jersey. The volume under review consists of essays prepared for the Commission. Its editors were closely connected with this body: Dr. Dullea, currently Vice-President for University Relations at Cornell University, was a commissioner; while Professor Gerald Benjamin, a Professor of Political Science at the State University of New York College at New Paltz, was the Commission's Director of Research.
In most ways, the book is a highly successful effort. It contains over twenty-five essays, most written by highly respected scholars. (Richard Briffault of Columbia Law School wrote six chapters; Burton Agata of Hofstra Law School penned four; and Benjamin authored or co-authored four.) They all avoid technical legal and political science jargon. Taken together, they not only tell you all you want to know about the strengths and weaknesses of the State's fundamental law but contain valuable information about the main statutes that implement that charter and about constitutions of other states. Somewhat surprisingly, most of the authors are agnostic on the question of whether the constitutional changes they favor should spring from a convention on the one hand or legislatively-initiated revisions on the other; though Goldmark makes it pretty clear in his introduction that he personally feels a convention is necessary.
The volume is divided into five sections. The first, titled "Why State Constitutions Matter", begins with essays by Briffault comparing and contrasting state fundamental documents with the U.S. Constitution; reminding the reader that the former must comport with the latter and the judicial interpretations thereof; and noting that state constitutions are generally more lengthy and detailed than their federal counterpart. He adds that they, unlike it, deal with local government; restrict state and local borrowing; and sometimes prescribe policy outcomes in areas such as education, environment, housing and welfare. Rutgers-Camden law professor Robert F. Williams then compares New York's to other state constitutions: in doing so he summarizes its various articles.
Section Two studies how its Constitution structures New York State's government. Benjamin treats of the various branches and public authorities -- the latter very important in the New York context. He also discusses the pros and cons of some proposals for change, including replacing a bicameral with a unicameral legislature, imposing term limits on state legislators and the governor, and having all judges selected by merit rather than in partisan elections. Whatever their desirability, these recommendations shed shudders down the spines of important political figures in the State and help explain why much of the push for a convention comes from EX-office holders such as Cuomo! Robert Kerker, a former official of the State Budget Division, details the limits on Albany's power to incur debt and give or loan money to corporations and individuals. David Wells, once a member of the New York City Districting Commission, discusses the constraints on redistricting imposed by U.S. Supreme Court jurisprudence and indicates that in several states redistricting power has been given to a non-legislative commission. Attorney Frederick Miller's essay on the judiciary describes the history and structure of the current court system and points out that court reform is less of an issue these days than it was twenty-five years ago: three constitutional amendments plus a State takeover of local court costs in the second half of the 1970s have made it easier to manage the courts effectively and to weed out dishonest judges. Briffault's thorough treatise on the relation between the state government and its localities studies constitutional limits on local taxation, spending and borrowing. It correctly indicates that Article IX's grant of "home rule" to local government is not all that it seems given the doctrine of the State's highest court, the Court of Appeals, that Albany may pass laws specifying and affecting a particular local unit (e.g., New York City) if the subject of the law is a matter of "state concern".
Section Three deals with the State's Bill of Rights -- Article I of the Constitution, as well as with some "positive rights" the charter accords New Yorkers. Agata summarizes the various provisions of Article I and accurately points out that the Court of Appeals has used that Article to defend freedom of speech and the rights of persons suspected of crime more vigorously than have the Burger and Rehnquist Courts. His suggestion (p. 268) that a constitutional convention might want to make "federal rights a ceiling as well as floor on state constitutional rights" is one reason why many civil libertarians shudder at the thought of such a gathering. He also notes Article I, Sec. 17 of the Constitution declaring that labor is not a commodity and granting workers, e.g., the right to organize and bargain collectively. The presence of this Section has spurred the labor movement to oppose the call for a convention for fear that the delegates might expunge it. Robert Stone then discusses Article XI requiring that the legislature shall maintain and support a system of free common schools. Symbolically, albeit not in practice, the most important Section of this Article is #3, the Blaine Amendment, which prohibits any state aid to be used for religious schools. Once of the reasons for the defeat of the constitution proposed in 1967 was its repeal of this Amendment; and fervent advocates of public education are worried that a similar attempt at repeal might be made during a 1999 convention. Moreover, believers in the State's responsibility to support its indigents are not thrilled by the prospect of summoning a convention now because they fear that Article XVII (analyzed in a chapter by Benjamin and Melissa Cusa) mandating this will be replaced by language that is merely permissive. The final "positive right" considered (in an article by Hofstra Law Professor William Ginsberg) is an environmental one, viz., the declaration of Article XIV, Sec. 1 that most state-owned lands in the Adirondack and Catskill mountains be kept forever wild. Many environmentalists are alarmed at the possibility that a constitutional convention would gut this clause.
Sections IV and III of DECISION 1997 discuss the amending process and the delegate selection process respectively. Particularly important here are Peter Galie's essay adducing evidence from history that New York constitutional conventions are not likely to produce radical or reactionary documents; and Benjamin and Cusa's effort providing data about how frequently the Constitution was altered between 1967 and 1993 by amendments proposed by the Legislature and approved by the voters. Article VI dealing with the judiciary was the subject of 9 of the 41 amendments they gave thumbs up to during this period. (The lawmakers submitted 61 to them.) Briffault's chapter "The Voting Rights Act and the Election of Delegates to a Constitutional Convention" was written in 1993 and never updated; but contains a lucid and thoroughly-elaborated-upon suggestion that for delegate-selection purposes, all State Senate districts, each of which has to send three delegates, be made multimember constituencies featuring limited or cumulative voting. This would, hopefuly, provide increased minority representation at the convention.
As this reviewer was reading the Benjamin and Dullea book, a question that frequently passed through his mind was that of the audience for which it was intended. The Foreword declares (p. ix) that the work "was prepared to inform the public discourse preparatory to [the] 1997 vote". Clearly it will not do this. It was supposed to have appeared by April 1, 1997 but seems in fact to have been issued around the middle of the summer, i.e., too late to be widely reviewed before the November election. Ergo, there is little chance that it can stimulate much discussion BEFORE that date about whether a convention should be called. Dialog of this sort would have been especially important as, for reasons noted above, many individuals and groups are viscerally opposed to convoking one. Perhaps their opposition is well-founded; but it should be based on an awareness of the strengths and weaknesses of the current charter as a whole rather than out of a fear that one's favorite section will bite the dust. Nonetheless, if the voters do in fact decide that a convention should be held, the information the book presents will be of great value to the delegates in deciding what changes to make and to the electorate when it subsequently renders a verdict on these. The Foreword also asserts that the volume can serve "as a source book on state government" (ix) -- and, as indicated, this is certainly a valid point.
For DECISION 1997 to be most likely to achieve its first goal of informing the public, its cost must be quite low. The less its price, the more likely the average person is to acquire a copy. The publishers would argue that their buyers are in fact getting a great bargain: $30 for over 525 pages is very inexpensive for a serious work. Nonetheless, the book could have been made shorter and thus even cheaper if the editors had been more willing to excise duplications. To take just one example of redundancy, there was little reason to include the Temporary State Commission's twenty-five-plus pages about the delegate selection process (pp. 407ff) when most of its recommendations are covered in detail in the subsequent four chapters.
Additionally, a few of the essays contain bits that are out of date and that thus detract from their educational value. For example, "Elections and the Political Process" says (p. 196) that the New York State Constitution contains various provisions on eligibility to vote (e.g., voters must be at least 21 years old and literate in English) that violate the U.S. Constitution. In fact these clauses were squared with the federal charter in amendments passed in 1995. The suggestion (p. 118) in the chapter on "Legislative Districting...." that a convention consider whether to require the establishment of majority-minority legislative districts is clearly passe in the light of the U.S. Supreme Court's jurisprudence beginning June, 1993 with SHAW V. RENO (509 U.S. 630). But despite these weaknesses, DECISION 1997 is a major contribution to the fields of state politics and state constitutional law.